Measles: Rockland emergency order halted by state judge; Day commends an uptick in vaccinations

A state Supreme Court judge today said he would rule within 24 hours on the legality of Rockland County Executive Ed Day's emergency order banning unvaccinated children from schools, places of worship and other public areas.
Peter Carr, pcarr@lohud.com

NEW CITY - A judge Friday halted Rockland County Executive Ed Day's emergency declaration barring children who are unvaccinated against measles from schools, places of worship and other public areas.

Acting state Supreme Court Judge Rolf Thorsen's injunction stated that the 166 cases cited by the county since the measles outbreak began last October did not rise to the level of an epidemic or constitute a disaster. Day's reliance on executive law in issuing the emergency declaration "may have been misplaced," the decision stated.

Thorsen agreed with the families who sued the county when they said their children would continue to miss school, and the parents would continue to incur monetary expenses as a result of the order. The families asserted that the children posed no threat to other children at a school where there had been no reported cases of the measles.

Michael Sussman, attorney for several dozen parents whose unvaccinated children attend Green Meadow Waldorf School in Chestnut Ridge, said the decision showed the judge agreed with his contention that the emergency declaration "is an improper vehicle for an over-broad order of this sort."

"We expect all schools in the county, where children who have religious exemptions and have been barred ... will be returned to school so they can continue their education," Sussman said late Friday afternoon.

Although Thorsen's injunction is temporary, the fate of the state of emergency is unclear. The county has the option of filing papers in advance of an April 19 court appearance, but by then Day's 30-day state of emergency would be almost done.

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County Executive Ed Day, right, and Commissioner of Health Dr. Patricia Schnabel Ruppert give an update regarding the effects of the State of Emergency Declaration in New City on Friday, March 29, 2019.(Photo: John Meore/The Journal News)

Day expressed disappointment in the ruling but maintained his belief that the order made a difference.

"While today’s ruling by Judge Thorsen did not go as we had expected I want to commend those here in Rockland who have used this State of Emergency as an opportunity to get vaccinated and have conversations with their friends and neighbors about vaccination," he said in a statement. "We sought to find a new way to fight back against a disease that was eradicated almost 20 years ago and refused to sit idly by while those in Rockland were put at risk."

Drew worldwide attention

Thorsen's ruling followed Thursday afternoon's arguments in a pair of lawsuits brought by parents whose unvaccinated children have been affected by the state of emergency instituted March 26 by the county executive.

The order was intended to put the brakes on a measles outbreak that started in October when a traveler from Israel visited the county. Many of the 167 cases have occurred in the insular Orthodox and Hasidic communities in the Monsey and Spring Valley area.

In addition to prompting hundreds of people to get vaccinated, the state of emergency has drawn worldwide attention and has landed the county in the middle of debates over civil and religious rights connected with childhood vaccinations.

Thorsen's ruling agreed with Sussman's lawsuit filed Wednesday claiming the families had been irreparably harmed by the order barring their children from school and restricting their travel, activities and daily routines.

The children all have religious exemptions to vaccinations, which are recognized by state education law but are prohibited under Day's state of emergency order.

Green Meadow, a K-12 non-sectarian and non-denominational private school, is not involved in the legal action. School officials state there have been no measles cases there.

The parents, who are only identified by their initials, claimed Day overstepped his authority in using an emergency declaration meant for quelling a disaster or other one-time event and not an ongoing health emergency. It additionally states that the individual orders comprising the declaration can only be issued for five days without being renewed.

"What's significant is the overreach involved, the indefensibility of it," Sussman, the lawyer for the Green Meadow parents, said after Thursday's court hearing.

Why no measles quarantine?

Sussman reiterated his contention that the emergency order is simply a case of grandstanding by public officials.

He added: "People's lives are being affected even though they are not in any way themselves carriers of the disease, they are not affected by the disease. But the people who are affected by the disease are not being quarantined even though they are a much smaller number. That's the way to proceed."

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Attorney Michael Sussman speaks outside the Rockland County Courthouse after a hearing on the Rockland County state of emergency because of measles April 4, 2019.(Photo: Peter Carr/The Journal News)

But Rockland County Attorney Thomas Humbach, representing the county executive, told the judge: "To try to quarantine at this point, we would have to open a sanatorium."

Humbach argued that Day had invoked the state of emergency legally and appropriately in response to a crisis that was likely much larger than the 166 reported cases indicated.

"The number of cases that we know about is different than the number of cases that there are," Humbach said during Thursday's hearing before Thorsen. "There are estimates that the number of cases that there are outnumber the cases that we know about by two to four times."

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Rockland County Attorney Thomas Humbach and attorney Patricia Finn outside the Rockland County Courthouse after a hearing on the Rockland County state of emergency because of measles April 4, 2019.(Photo: Peter Carr/The Journal News)

The county attorney argued it was imperative to balance the liberties of some people with the need to stop spikes of a highly contagious virus he said were popping up across the county and not just in isolated areas.

Without the ban, there's a risk it could spread among infants and the infirm with serious complications like encephalitis, Humbach warned.

Measles: Outbreak vs. epidemic

During Thursday's hearing, Thorsen asked Humbach: "Where does an outbreak end and an epidemic begin?"

Humbach replied that the words are similarly used, and said the numbers of measles cases and destruction caused by them warranted the situation to be labeled an emergency.

The judge also asked Humbach whether the county's order could have been more narrowly tailored instead of how widely it was applied.

Humbach said the county had considered narrowing the ages and locations to schools and houses of worship but had decided otherwise.

Afterward, he said "it is not the county executive’s job to cater to individuals. The county executive is responsible to the entire populace of the county and is using the powers granted to him by the law to take the course he deems fit to protect the population as a whole. ... In this case, the good of the many must outweigh the preferences of the few, or the one."

Another lawsuit filed Wednesday on behalf of an unnamed Rockland County mother and her unvaccinated baby daughter, also targets the county for failing to quarantine people with measles.

Vaccinations vs. religious freedom

The lawsuit filed by lawyer Patricia Finn alleges Ed Day's emergency order discriminates against people with religious exemptions to vaccinations and violates their religious freedom by keeping them from celebrating Easter or Passover in houses of worship.

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Attorney Patricia Finn speaks outside the Rockland County Courthouse after a hearing on the Rockland County state of emergency because of measles April 4, 2019.(Photo: Peter Carr/The Journal News)

Finn is a Piermont attorney who represents clients who have been injured by childhood vaccines and specializes in cases involving religious and medical exemptions to vaccinations.

"The pharmaceutical companies are dominating the media," Finn told the judge. "They're scaring people and the county executive is reacting to that."

The health commissioner said last week that some 17,600 MMR vaccinations had been given since the beginning of the outbreak in October — a number has increased by almost 700 since the state of emergency was declared.